Sam, A Natural Born Catizen, for President?

Our recently deceased cat, Sam, came to me in a dream last night after the Republican debate. It was a joyful if surprising reunion. Recent news stories portraying cats as neurotic would-be murderers clearly came out of the canine community. Sam, though undeniably a fierce hunter, was a dignified and gentlemanly member of our family.

Sam quickly threw me for a loop.

“Jim,” he spoke, “I need your support in the Republican presidential primary, can I count on you?”

“I had no idea you were running,” I told him.

“Why, because I am a feline-American?” he hissed at me.

Clearly, I was on dangerous ground with my old buddy.

“Sam, you know, as a black man,” I reminded him, “I can be neither prejudiced nor speciest.”

“What then?” he retorted.  As he did, his posture shifted to that familiar low-slung threat posture of the hunting cat.

With trepidation, and as matter-of-factly as I could manage, I said “well, Sam, old friend, you are dead!”

“And?” he replied.

I looked down, worrying that he might see my incredulity at the whole prospect of a ghost running for, let alone winning, the Republican nomination for the presidency.

Pausing for a moment, I considered how to explain the Sam that he really was not eligible to be elected president, and how to do it without being mean or ugly, and certainly without stepping on his toes, err, claws.

I could, I thought, take an indirect route.

I could paint a portrait of service as president in such a light that Sam would see that it was not something in which he was truly interested. The long hours, the handshaking, the baby kissing, the endless fundraising, the mundane tasks of the presidency would eat into the normal routine of one who enjoyed lounging on the back of the couch, there basking in the sunlight coming through a window, or chasing the occasional mice, birds, or squirrels, or staring longingly at the cat food bag. Being indirect had its advantages, especially when the person, err, cat to whom I was speaking came equipped with a sharp set of claws.

Still, while cats may creep in on soft paws, I preferred the direct route.

“Sam, what is the point of running for the office of president if you’re not eligible to be elected to it? As strange as it may seem to you,” I told him, “although there are very few legal requirements to be eligible for the office of president, the truth is that you probably do not satisfy one of the requirements, perhaps more than one.”

At this point, Sam was licking his paws and using his moist paws to groom his face. He paused, “go ahead, do tell.”

“It’s like this, Sam,” I said, reaching back into my memory of the Constitution, “to be eligible to be elected president, the US Constitution sets a small number of qualifications.”

My ethereal visitor stretched, as felines do, pawed the couch cushion on which he sat, as though he were kneading dough, then, settling down, simply said, “Proceed.”

“Article II of the Constitution creates the Executive Branch of the federal government. By executive, the Constitution means that part of the government that actually executes or carries out the laws.”

“Jim,” he snapped, “I’m not a school kid, get to the meat of it, and quick, because I’ve shortly got to go get to the meat of a bird!”

“Very well,” I responded, “in Article II, the Constitution has one clause, the Presidential Eligibility Clause, which sets the qualifications necessary to be elected president. It says,” and here I recited as best I could from memory:

“No person except a natural born citizen, or a citizen ofthe United States, at the time of the adoption of this Constitution, shall beeligible to the office of President; neither shall any person be eligible tothat office who shall not have attained to the age of thirty five years, andbeen fourteen Years a resident within the United States.”

“So,” I resumed with my explication of the text, “you have to be a natural born citizen, you have to be at least 35 years old, and you have to have resided in the United States for the previous fourteen years at the time of the election.”

Sam eyed me, quizzically. He harrumphed.

“Well, I was born in the Commonwealth of Virginia,” he reminded me.

(Sam was part of our family from about a year after his birth. He was, as I wrote in a previous post, A King Among Cats. While he had not previously told me where in the Washington metro area he was born, I always assumed he was a native Virginian.)

I could see where this line of thinking of his was leading.

“Sam, no doubt you were born in Virginia,” I assured him, “but it takes more than being born in Virginia to be a natural born citizen. You have to be a person.”

He interrupted me, “I thought you said you weren’t speciest?”

“It’s the Constitution, Sam, not me,” I replied apologetically.

He countered, “Is that the same Constitution that, according to the Supreme Court, considered black people like you to be chattels, property, and not persons?”

Obviously, Sam had been listening to my musings over the years, and knew my constant criticism of the Court for its oftentimes purposive misinterpretation of the Constitution. He had found my weakness, or at least my soft spot.

“Well, yes, it is. But the fault there was the Supreme Court’s, not the Constitution’s, and as so many for so long had behaved as though the Constitution was a blank slate on which creative justices were entitled, as justices, to write their preferred meanings of the words, rather than to apply the words with their common meanings.”

“I remember you saying once that one the justices had claimed that rivers, trees, streams and such should be treated as persons. Why would you think that a tree is a person, when it isn’t even a fellow member of the animal kingdom like you and me, and that we cats couldn’t be persons too?”

“Sam, you remember what I said then, if you remember me talking about Justice Douglas and his dissenting opinion in the Sierra Club v. Morton case.” I continued, “Justice Douglas was simply ignoring the plain meaning of the words of the Constitution, perhaps it was just an aspect of his advancing age and confusion, or, perhaps, he fell under the delusion of folks who thought trees were persons but babies before birth were not. In any event, his argument was made in a dissenting opinion because no other justice on the Supreme Court has ever claimed that non-humans could be persons.”

“Well,” he retorted, “at least you admit that a Supreme Court justice agrees with me. What’s the rest of your poor argument?”

I knew the rest of this conversation would not go well.

“As I said,” continuing my explanation, “to be eligible you have to be a ‘natural born citizen’ and the Constitution has always been understood to exclude any candidate from that category that is not a ‘human’ person. But you have to be more than a person, and more than just a citizen. You have to be a ‘natural born citizen’ to be eligible.”

Apparently that distinction caught his attention, “What’s the difference between a ‘citizen’ and a ‘natural born citizen?’”

“Exactly the right question, Sam!” I showed my excitement at his reasoning through things.

“A citizen of a country is a person, a human, that owes duties to that country and that enjoys rights and privileges not available to those who are not citizens,” recalling the things I wrote about citizenship in another post. 

“But the Constitution uses both the word ‘citizens’ and the phrase ‘natural born citizen’ so we have to be sure we understand each word and whether there are differences.”

He nodded encouragingly, so I continued.

“’Natural born citizen’ appears just once in the Constitution, in that presidential eligibility clause,” I winced a bit as he had his fun scratching me with his claws, “and nothing in that part of the Constitution defines ‘natural,’ ‘born,’ or ‘citizen,’ or ‘natural born citizen.’”

“If the words are not defined,” he posed the question, “why can’t they mean whatever they need to mean in order for me to be eligible to be elected President?”

“Because,” I tartly replied, “you, Sam, are no Humpty Dumpty and the Constitution is not ‘Through the Looking Glass!’”

“So, as you can see, there are actually two kind of citizens in the Constitution. One kind of citizen is a natural born citizen, the other kind of citizen is a not a natural born citizen.”

At that point, Sam pushed his head under my hand. I'd almost forgotten how much he enjoyed having his forehead and chin scratched. I began to work gently on it.

“Well Jim,” he asked, “What's the difference?”

“The difference, Sam” I explained, “is that some persons are born as citizens of a country, while others become citizens by operation of a law. Persons who are born citizens of a country are ‘natural born citizens.’ Others, immigrants to the land, for example, apply for citizenship through a process called ‘naturalization.’”

“You see, before the Constitution, each of the 13 states had their own power to make citizens out of persons who were not yet citizens.”

At that point, Sam jerked his head up against my hand, “There you go with that person thing again.”

“I’m sorry, Sam.”

I continued, “In any event those who came to one of the states prior to the adoption of the Constitution could become citizens through the state law process for that state. With the adoption of the Constitution, the process for becoming a citizen was subject to change. The Constitution assigned to the Congress power to provide a uniform rule for naturalization.”

“In fact, after the Constitution was ratified, among its first acts, Congress passed the first Naturalization Act. The Constitution did not define ‘natural born citizen’ but, honestly, a definition for citizen was not needed. Because the meaning of ‘citizen’ was clear, and the phrase ‘natural born’ was readily understood to mean ‘one that was born in the country as a citizen, one who owes special duties to the country and who enjoys special status or privilege within the country, was the understood meaning of that term in the Constitution.’”

“So the Constitution gave to the Congress no power to define citizenship. It gave only the power to Congress to provide a uniform rule for becoming a citizen, ‘naturalization.’”

“So, some people are citizens because they are born here. Becoming a citizen by birth within it is an effect of our legal descent from England. At the time of our revolution, in England, everyone born within the United Kingdom was considered a subject of the crown. Our revolution from England did not have to do so much with our dislike for, or intolerance of English law, but with our rejection of the tyrannical application of it to Englishmen living in the colonies. So, when the colonies separated from England, and asserted their own separate station as nations, one of the first legal acts of those new nation-States was to adopt English law as the body of law for each of the States.”

“I don't want to get too deep in the weeds, Sam, but at that time, this legal principle – jus soli – governed citizenship by birth in England, and in the United States. Some other nations took a different approach. They followed a rule called ‘jus sanguinis.’ Under ‘jus sanguinis,’ a person, when born, took the same citizenship as their parents. Neither England nor the United States ever followed jus sanguinis.”

“So, when the Constitution said that to be elected president one had to be a ‘natural born citizen,’ it was making clear that while there were both ‘born citizens’ and ‘naturalized citizens’ only a ‘natural born citizen,’ that is born here in the United States, enjoys the special status of eligibility to be elected president.”

“You see, Sam, if the only issue of eligibility for you was whether you were born here, you would be eligible to be elected president. That other matter, though, the fact that the term ‘citizen’ is limited to ‘person,’ pretty much puts the kibosh on your eligibility.”

“Once again with the speciest dominance,” Sam retorted. “I can’t count on four paws the number of times I have heard you talk about the Dred Scott case, where the Supreme Court ruled that blacks were not, could never be, ‘persons.’ You’re an attorney, and a constitutional law attorney at that, couldn’t you file a lawsuit to get a decision that I am a natural born feline citizen?”

“Alas, Sam,” thinking that I might not dissuade him from his pipe dream, “it took a Civil War, nearly a half million dead, and 80 billion dollars of war-making expense to get to the point where the Nation rose up and reversed Dred Scott by adopting the Fourteenth Amendment. I suspect we aren’t ready in this country to fight a costly, deadly war to win you status as a feline-citizen. Perhaps PETA would take on the case?”

“In any event, friend, the other eligibility conditions present problems for you.”

“How so,” Sam asked me.

 "Well, Sam, under the Eligibility Clause, you have to be at least 35 years old and you have to have resided in United States for the previous 14 years. By my best reckoning, you were about 11 years old when you passed away. That means  you would not have been 35 years old nor would you have lived in the United States for the previous 14 years.”

“Now just a doggone minute,” Sam interrupted me, “you know, and I know, that cats age differently than humans. In fact, you say I was 11 years old but most feline experts agree that I was 15 by my first ‘human’ birthday, 25 by my second ‘human’ birthday, and had reached the human equivalent of 60 years of age at the time I turned 11 in human years.”

“I have another bone to pick with you,” Sam continued.

“Didn't you say that, to be eligible to be President, a person had to be a ‘natural born citizen’ of the United States? And didn't you say that to be a ‘natural born citizen’ of the United States one had to be born in the United States?”

“Certainly,” I replied.

“But there is a Republican candidate for the nomination who was not born in the United States. Why is he eligible to be elected president and I am NOT?”

“You're referring to Ted Cruz,” I said, “in my book, Ted Cruz would make an excellent president, but, like you, he is not eligible to be elected, at least not according to my understanding of the Constitution.”

“This is a long-running dispute that I have had with those who say that Ted Cruz is eligible to be elected president. Ted was born in Canada. By Canadian law, Ted Cruz was born a citizen of Canada. Canada, like the United States, is a nation whose laws were based on English common law. Unlike the USA, Canada continues its close relationship with the United Kingdomas part of the Commonwealth of Nations. A person born in Canada, is, by Canadian law, a citizen of Canada and also a subject of the crown of England.”

“Well then, Jim,” Sam again interrupted, “why is Ted allowed to run and I am NOT?”

“Sam, remember when I said that the Constitution grants to the Congress the power to make a uniform rule for naturalization? All the way back to the first Naturalization Act and coming forward, Congress has asserted a power to grant ‘natural born citizen’ status to persons born outside of the United States under certain conditions.”

“This explanation may be a little convoluted, but let me put it this way:  In England, under the common law, every person born within the boundaries of the kingdom was a subject of the crown, what we would call a ‘citizen.’ There was one exception to that rule: children born to foreign emissaries - - representatives from foreign countries serving their country in England - - were not considered citizens or subjects of the Crown.”

“That special rule reflected international law and international legal principles that were necessary to allow a system of international diplomacy.”

Sam stretched again. I considered that I might be losing his attention but continued, “Here's an example.”

“Suppose the government of France, under King Louis, sent an ambassador to England. The Ambassador brings his family with him. While serving France in England, the French ambassador’s wife gives birth to a son. Under English law, absent the exception, the Ambassador now has an English son, and the English Crown has a new subject, and the French Crown has an ambassador with a foreign son. So the principle developed, that children born to foreign emissaries on duty in another country did not have the citizenship of the nation in which they were born. Instead, they had the citizenship of their parents’ home nation.”

“Jim,” Sam interrupted again, “that doesn't explain why Ted Cruz is eligible to run for president and I am NOT. Was one of Ted parents an ambassador to Canada?”

“No, you're right, Sam,” I said. “That doesn't explain how Ted is eligible, and no, neither of his parents were ambassadors to Canada. In fact, Ted’s mother was a US citizen; his father was an expatriate citizen of Cuba. Under the jus soli rule I mentioned before, Ted clearly would not qualify as a ‘natural born citizen.’ Instead, today, and at the time of Ted Cruz birth in Canada, to the Naturalization Act provides that certain children born outside the USA to certain citizens of the United States are citizens at birth.”

“When Congress passed the Naturalization Act, as I said, they were exercising the Naturalization power. The first Naturalization Act expressly provided that persons born abroad to certain US citizens would be ‘natural born citizens’ of the United States. Congress subsequently repealed that act, and never again included such a provision in future versions of the Naturalization Act.“

“Just a second, Jim,” Sam snapped, “you said ‘naturalization’ made people who weren’t citizens into citizens. If Congress used its naturalization power to pass the Naturalization Act and included in the Act a section making some people born outside the United States citizens at birth, then wouldn’t those persons actually be ‘naturalized citizens?’”

“And that, Sam, is exactly why Ted isn’t eligible to be president, much as I like the man, his character, and his policies.”

Suddenly Sam stood. He turned and turned, rubbing his side against my leg. Then he turned and looked up at me, “Jim,” he said, “I wonder if you would mind helping me draft a press release? I think I’m going to withdraw from the race.”

“My pleasure, Sam,” I said, petting his head as he faded into memory, “my pleasure entirely.”

Shooting A Blank: Clement and Katyal Fire a Dud in the Qualification Wars

In a post on the Harvard Law Review Forum, Paul Clement and Neal Katyal recently addressed a question that has lingered over the two most recent quadrennial presidential elections: the ticklish question of eligibility to be elected President.

Setting aside more considerable qualification considerations, such as experience managing a large-scale enterprise, familiarity with and competence for the duties of the office, and the like, the question they addressed pertained to one particular qualification for the Presidency stated in the Constitution. To be elected, that qualification requires one to be a “Natural Born Citizen” of the United States. That phrase, “Natural Born Citizen,” appears nowhere else in the Constitution as originally enacted. It stands in contrast to its single exception, allowing one to be elected president though not a “Natural Born Citizen” if, “a citizen of the United States, at the time of the adoption of the Constitution.”

Alternative meanings of the Natural Born Citizen provision of the Qualifications Clause of Article II have been, or could be, proposed. 

In fact, several methods can be identified for giving meaning to any word, phrase, clause, section, or article of the Constitution. Consider, for example, the contrast between a view that the Constitution is a document of fixed, determinate meaning, and a contrary view that the Constitution is an organic document the words, phrases, clauses, sections, and articles of which may acquire new meaning over time.  The former view, the one of a “hide-bound” Constitution, is often invoked by critics to describe the philosophy of Antonin Scalia and others who share his approach to construing the Constitution. The latter view, of the Constitution as a living, breathing, and evolving document, has often been invoked to describe the philosophy of justices such as Ruth Bader Ginsberg and Stephen Breyer.

I have never worked with Neal Katyal. 

As Senior Counsel with the American Center for Law and Justice, I worked with Paul Clement several times. Clement cut his teeth as a law clerk for Justice Scalia. Unsurprisingly, in our casual conversation and work together at the time, I discovered that, like Scalia, like me, and like Thomas Jefferson, Clement held the view of the Constitution as a document of intentionally drawn words, phrases, clauses, sections and articles, a document of fixed and discernible meaning. 

Yes, I did just bring Thomas Jefferson, the author of the Declaration of Independence into the conversation; and, yes, I realize that he did not participate in the drafting of the Constitution. But Jefferson was an early watchman on the walls against judicial tyranny.

In a letter to Judge Spencer Roane, dated September 6, 1819, Jefferson debunked a view, asserted by the Supreme Court, that it had the position of ultimate interpretation of the Constitution, over the coordinate branches, the Legislative and the Executive. Such a construction of the Constitution created the serious risk of tyranny by the Judiciary. Jefferson explained, “The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” 

I treasure Jefferson’s view – of the Constitution as a hide-bound document of fixed and discernible meaning – and his warning – that judges might treat it as a waxen plaything, softening it with the touch of their analyses and decisions until it took the shape of their desires.

But even among us hide-bounders differences in approach to and resolution of constitutional questions will arise. Clement’s recent joint post, with Katyal, on the Harvard Law Review Forum, addressing the Natural Born Citizen provision of the Presidential Qualification Clause proves the point.

Clement and Katyal commit a regrettable error in construing the strands of English legal history that form the foundation of America's legal history. They seek, as lawyers and judges will do, to provide a particular meaning to a constitutional provision; in fact, they present a purposive interpretation of the history of the question of the Natural Born Citizenship requirement of Article II; that interpretation is not one obvious from the language of the document.

As an initial matter, Clement and Katyal seek to induce a sense that the constitutional phrase "natural born citizen" is uncertain of meaning. Given uncertain meaning, as our courts have played the Judicial Supremacy game, judges (and approved armchair quarterbacks) lend their service by “discovering” "authoritatively" the meaning to be ascribed to the uncertain provision. 

Mark DeWolfe Howe, a legal historian, described this judicial habit. He observed its repetition by Supreme Court justices who rewrote the scope and meaning of the Establishment Clause in a series of decisions from the late 1940s through the early 1960s. In “The Garden and the Wilderness,” Howe skewered the enterprising justices for being artisans of the history of the law, rather than pupils of it. 

Though he did not use the precise term, he suggested that the pretend historians of the Supreme Court were no more to be believed than was Aaron when he told Moses that he had not fashioned a golden calf while Moses was on the Mount but had only thrown gold into the fire, and the idol fashioned itself.

Clement and Katyal would have nothing about which to write on the subject of the Natural Born Citizen language, however, unless the meaning of the phrase was, in fact, fraught with uncertainty. Given six continuous years of controversy over the question of Barack Obama's status as a Natural Born Citizen – a contentious debate disdainfully summarized as the “birther argument" – perhaps we must simply accept that a rather clear and seemingly precise phrase, “Natural Born Citizen,” is neither clear nor precise or at least that it is only as clear and precise as Clement and Katyal will then show it to be.

What Clement and Katyal do is to attempt to establish that a phrase of plain meaning and import was not intended as such by those who drafted and ratified the Constitution. That obvious meaning, it seems to this reader, is that one is Natural Born Citizen if one’s citizenship arises as a consequence of their natural birth within the United States.

On this point, English common law is instructive. 

Every one of the newly independent States adopted English common law as a rule for the decision of cases until modified or repealed by acts of their legislatures. While we rejected the tyranny of the Crown and disassociated ourselves from our brothers in Parliament because of their indifference to our suffering, we retained the majesty of the English common law. [For those to whom English common law is an unfamiliar concept, it is the entire body of judicial made law resulting from the decision of cases in England over the course of centuries. By adopting English common law, newly independent States generally populated with Englishmen and their descendants retained a familiar and workable body of law for the resolution of disputes.]

Under English common law, there was no such thing as a “Natural Born Citizen.”

Rather, a different but related concept existed, “Natural Born Subjects of the Crown” or “Natural Born Subjects.” The concern over one's status in England as a “Natural Born Subject” existed for many reasons. A primary reason for needing certainty about status as a “Natural Born Subject” was that English law limited hereditary title and the capability to inherit properties to those who were “Natural Born Subjects.” Thus, one’s status – whether one was a Natural Born Subject – could powerfully affect the course of one’s life. And, as it turns out, under English common law, only a person born within the realm of Great Britain, within the kingdom, could lay claim to status as a “Natural Born Subject.”

As it turns out, the meaning of “natural born” in English common law is too confining for their purposes, it must be stretched. That stretching is the hallmark of their error and their erroneous conclusions regarding the eligibility of Ted Cruz, John McCain, and George Romney (Mitt’s dad) to be elected to the Presidency.

Their conclusion conflates English statute law and English common law. 

The significance of that conflation cannot be overstated. As noted, under English common law, only persons born within the realm were entitled to status as “Natural Born Subjects.” Hard choices faced those living with such a reality. Called to service, engaged in mercantile trade, traveling for study, many reasons provoked Natural Born Subject to remove to other lands. Living abroad – even in service to the country and Crown – would risk that offspring would suffer disinheritance of title and property. So Parliament necessarily, wisely, granted to specific categories of persons born abroad status as Natural Born Subjects.

In fact, Clement and Katyal gloss over this dichotomy. English statutory law, enacted by Parliament, extended “Natural Born Subject” status to additional classes of persons not within the English common law’s sweep of the term. It is from that premise – Parliament’s expansion of the scope of “Natural Born Subject” – that Clement and Katyal illogically leap. The leap is illogical because they refer to the vaunted role of English common law in understanding our early legal history and as a source work for understanding the Constitution but then invoke English statute law to give meaning to our Constitution’s “Natural Born Citizen” provision. But what was transmitted, via the adoption of English common law in the newly independent States of 1776, was that Natural Born Citizen status would be determined, not by parentage, but by birth within one of the united States (or citizenship in them at the time of the adoption of the Constitution).

Through the Constitution, the People and the States granted limited legislative power to the Congress of the United States. The Constitution defines the scope of, and the appropriate subjects of, that donated legislative power.

Among the powers given solely to it, the People and the States provided, in Article I, Section 8, that Congress had authority “to make a uniform rule of Naturalization.” “Naturalization” converts one that was a foreigner, an alien, into a citizen. 

In the United States, whatever requirements for naturalized citizenship set by the Constitutions and laws of each of the thirteen independent States would be superseded by such “uniform rule of naturalization” as Congress might enact. 

And, as Clement and Katyal point out, Congress quickly acted to adopt such a uniform rule of naturalization, the Naturalization Act, exercising its Naturalization Clause power to create such uniform rules as it did. 

To the contrary, however, the decision of Congress, when it enacted the Naturalization Act of 1790, to extend Natural Born Citizen status to persons who were not, in fact, by operation of the common law, "Natural Born Citizens" was not a proper exercise of the Naturalization Clause power. (Congress reversed that exact position just five years later when it repealed that Act by adoption of the Naturalization Act of 1795.) 

The essence of naturalization is to make one a citizen that is not a citizen. 

So the whole, express, power of Congress concerning citizenship is related to naturalization, and it is limited to the task, of making, as it were, citizens out of whole cloth. But therein lays the rub for Clement and Katyal. While Parliament had the power to grant Natural Born Subject status to persons denied that status by operation of common law, the Congress of the United States is a legislative body of limited and defined powers. 

For Clement and Katyal to succeed, they must identify a legitimate ground upon which Congress could expand the meaning of the Natural Born Citizen provision. 

Though decades of sifting have sought it out, no Revisionary Power Clause extends such power to Congress, the Courts, or the President, anywhere in the Constitution. There is, of course, Article V, with its established processes for amending the Constitution. The Naturalization Act was not such an amendatory exercise.

So, the Naturalization Act notwithstanding, the question will remain whether the candidate was born in the United States to parents not present here on diplomatic service from another Nation. If that analysis governs, Clement and Katyal have reached the wrong conclusions about the eligibility of Ted Cruz, John McCain, and George Romney to be elected President. While each of these would certainly be entitled to claim citizenship under the Naturalization Act, none is a Natural Born Citizen.

The conclusion Clement and Katyal reached regarding Barry Goldwater’s eligibility, however, might be supported for an oddly different reason. Goldwater was a citizen of Arizona at the time that Arizona, by admission as a State of the Union, adopted the United States Constitution. His eligibility, nearly two hundred years after the ratification of the Constitution, might well be justified under the sole exception to the Natural Born Citizen provision, namely that one must be a citizen of the United States at the time of the adoption of the Constitution.

But What If Ted Can't Be President?

Imagine the scene:

Candidates for the nomination of the Republocratic Party to the office of President of the United States are gathered for a debate. Standing at lecterns, from left to right, are five candidates for the nomination. They are:

White Tail, a Native American, born on a Native American reservation, in the United States to parents that were, as well, and have always been, registeredmembers of their federally recognized tribes and citizens of the United States.

Freddie Fox, born in the United States to Canadian parents, both of whom were born in Canada, claim Canadian citizenship, travel on Canadian passports, but who work in Hollywood.

Bethany Depp, born in France to married parents then living in France but who were born in the United States to parents also born in the United States and that have always been citizens of the United States.

Odala Olama, born in Kenya to an unmarried mother visiting Kenya from her native United States, of which she claims to be a citizen since birth not yet 21 years of age, and to his father, a native born citizen of Kenya. 

Omama Osama, born in the United States to an unmarried mother, a native born citizen of the United States, not yet 21 years of age, and his father, a native born citizen of Kenya.

After eight years of ongoing “birther” controversy, a blogger participating as a questioner in the Republicratic debate asks each candidate to address the following question and its parts:

"Article II of the Constitution organizes the executive powers of the federal government and deposits them entirely within a President of the United States.  That Article also sets the qualifications for the President.  There are not many:  The president must be 35 years of age, must have been fourteen years a resident of the United States, and must be a 'natural born citizen' of the United States.  On what basis do you claim to the meet the qualification that the President must be a natural born citizen of the United States?  What provision of the Constitution makes you a natural born citizen of the United States?  Do you depend upon the operation of a federal statute to claim status as a natural born citizen of the United States?  If you do depend upon the operation of a federal statute to assert natural born citizenship, to what statute do you refer, and on what power of Congress do you contend the enactment of such a statute relies?"

Perhaps we should just ignore the inconvenient portions of the Constitution.  In fact, arguments are made, from the left and the right of the political spectrum, that there already is a whole lot of ignoring the Constitution going on.  We are, however, a constitutional republic. Thus, we aught not simply ignore the provisions of the Constitution that we find disagreeable. The Constitution provides for its own amendment in Article V.  A straightforward reading of Article V omits any process whereby the Constitution is amended by being ignored or reinterpreted.

To the present unpleasantness:

I have concluded that Senator Ted Cruz of Texas is ineligible to serve as President of the United States.  While this statement will result in castigation by others who, like me, love the stand he took in the Senate on defunding Obamacare, I take it because it reflects my honest conclusion regarding the text and meaning of the Constitution.

I could not support his selection as the 2016 nominee of the Republican Party for the Presidency.  I may get smacked around for saying so, but the Constitution limits eligibility for the office of the President to those who are "a natural born citizen" (or who are old enough to have been "citizen of the United States, at the time of the adoption of this Constitution"). US Const. Art. II, sec. 1, cl. 5.

The Constitution does confer a power on the Congress regarding naturalization. Article I, sec. 8, cl. 4 states that Congress has the power "To establish a uniform rule of naturalization." The Constitution does not state that Congress has the power to define what is a "natural born citizen." Nor does the Constitution say that the Congress has the power to determine that individuals born outside the United States are "natural born citizens."

Some have argued that the naturalization power granted to Congress necessarily encompasses the power to grant “natural born citizen” status to persons that would not, by circumstances of their birth, be considered natural born citizens. Those who take that position err. They do so by relying the fact that the English parliament exercised power to grant “natural born subject” status to person that, but for such a statutory enactment, would not have been “natural born subjects” because they were not within the English Common Law definition of such. Unlike the legislative powers exercised in a parliamentary government, however, the Congress of the United States is a legislative body of limited, express powers only. For those, such as Paul Clement and Neal Katyal, that conclude that “natural born citizens” includes persons granted that status by virtue of congressionally enacted Naturalization Acts, their conclusion rests on concluding that Congress was given the power not only to naturalize citizens who were aliens, but to further endow “natural born citizen” status on persons who circumstance of birth did not cause them to fall within the common law definition of “natural born citizen.”

Prior to the ratification of the Fourteenth Amendment, there was no constitutional clause defining citizenship of the United States or how citizenship is acquired. It is only with the Fourteenth Amendment that we have a constitutional provision defining citizenship: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." That clause, however, does not expressly or directly assert that its provision defines the Article II phrase, “Natural Born Citizen.”

The Naturalization Clause cannot properly be the source of a power in Congress to enact laws extending "natural born citizenship" to persons born outside the United States. As the Supreme Court interprets "naturalization," for example in Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892), it is "the act of adopting a foreigner, and clothing him with the privileges of a native citizen." Thus, the Naturalization Power is the power to confer a status similar to, but not the same as, "natural born citizenship."

I am not certain how any of my fictional candidates would respond to the questions posed.  Remember those questions: 

[1] On what basis do you claim to the meet the qualification that the President must be a natural born citizen of the United States?  

[2] What provision of the Constitution makes you a natural born citizen of the United States?  

[3] Do you depend upon the operation of a federal statute to claim status as a natural born citizen of the United States?  

[4] If you do depend upon the operation of a federal statute to assert natural born citizenship, to what statute do you refer, and on what power of Congress do you contend the enactment of such a statute relies?"

Were I Ted Cruz, standing at such a lectern, I think my answer would have to be, "My mother is a native born citizen of the United States, therefore I am."  In fact, he said nearly precisely those words in an interview with ABC:  “My mother was born in Wilmington, Delaware. She’s a U.S. citizen, so I’m a U.S. citizen by birth. I’m not going to engage in a legal debate.”  But given his unwillingness to engage in "legal debate" on the question, we may never know what provision of the Constitution he believes makes him a US Citizen.  He has eschewed reliance on the Fourteenth Amendment's Citizenship Clause.  Since the Constitution omits a provision granting "natural born citizenship" status to persons born abroad to American citizens, he most likely would look to federal statutes by which Congress has, justifiably or not, sought to extend natural born citizenship in special circumstances to those born outside the United States.  And here is Ted’s "got ya" moment.

The Constitution DOES NOT CONFER, by its EXPRESS TERMS, a power on Congress to endow any person with status as a "Natural Born Citizen" of the United States. Remember, Congress is not Parliament. Instead, as explained above, the Naturalization Clause grants to Congress the power to provide a uniform rule for naturalization.  Again, in turn, naturalization makes one that is not a citizen into a citizen, by operation of law, not by fact of birth.

I would prefer to be wrong in this conclusion. I am willing to be convinced otherwise by such arguments as rest on the Constitution and sound principles of its construction and interpretation. Those offered thus fair fail to carry weight. Indeed, more often, what is suggested to be noteworthy about such conclusions is who has drawn the conclusion rather than the reliability, historicity or constitutionality of them. Absent a reasoned explanation that dissuades me from my understanding based on history and the law, I cannot support Ted Cruz in his pursuit of the Republican nomination.